Health Care Complaints Commission v Bechara

History of disciplinary proceedings

1. The practitioner's disciplinary history is relevant to an understanding of the context of the allegations made in Complaints One and Two, and in considering what protective orders are appropriate.
2. In an affidavit sworn 2 August 2018 the practitioner summarised her employment history as a beauty therapist from 1999 before she completed a Diploma of Nursing as a full time 12 month course, and was registered as an enrolled nurse in August 2014. She had six months employment as a nurse in a Macquarie Street surgery in 2014, and opened her clinic Radiance Non-Surgical Cosmetics in April 2016.
3. In March and June 2016 three complaints were made against the practitioner, that she was providing cosmetic injections from home and selling S4 medications without authorisation, was not covered by insurance, and was claiming to be a registered nurse; that she was uploading photographs of patients on social media without permission from the clients or her then employer; and that she was falsely advertising that she was a clinical nurse specialist.
4. A Counselling Committee of the Council held a counselling interview on 7 September 2016 (ex A1, tab 17). The practitioner advised that she worked as a sole trader as a cosmetic nurse, working remotely with Dr Albert Ho and other medical practitioners employed by Dr Ho's company "Renaissance". The practitioner said that she undertook an assessment of the clients and would consult with the client and a doctor from the Renaissance team via Skype, the doctor would consent for the patient to undergo the treatment and complete a prescription for the Botox or filler and email it to her. The practitioner stated that she kept the S4 medications in a locked cupboard or refrigerator; she did not administer S8 medications, which would have to be done by a registered nurse. The Committee noted limitations as to the practitioner's CPD reporting. The practitioner advised the Committee that she was unaware of the protected titles "Registered Nurse" and "Clinical Nurse Specialist" until she had received documentation from the Council about her use of titles. The Committee recommended to the Council that the matter be referred to the Australian Health Practitioner Regulation Agency ("AHPRA") to undertake a CPD audit.
5. A further three complaints were received by the Council, from patients unhappy with the treatment provided by the practitioner. On 7 March 2017 the Health Professionals Council Authority ("HPCA") undertook an inspection of the practitioner's premises, and a Performance Assessment was conducted on 24 March 2017. The Inspection Report (ex A1, tab 17) noted issues with the practitioner's compliance with infection control procedures, and the absence of documented policies and procedures including for infection prevention and control and medication administration. The Performance Assessment Report (ex A1 tab 17) noted a number of deficiencies in the practitioner's practice as an enrolled nurse.
6. The assessors recorded concerns about the practitioner's ability to safely calculate and administer a medication dose, that she was not able to clearly articulate the signs and symptoms of a patient having a severe anaphylactic reaction to a dermal filler, or to explain the use, action and side effects of a particular drug before embarking on cosmetic procedures, and that she was unfamiliar with common drugs and unable to identify possible side effects of the use of a commonly used lip filler. The assessors concluded that the practitioner had not demonstrated that she could fulfil the duty of care in the undertaking of practice as an enrolled nurse, practice within legislation and standards, undertake a comprehensive health assessment, document findings, respond and provide care to a deteriorating client, administer medications safely and attend to hand hygiene. The assessors concluded that the practitioner required direct supervision by a registered nurse in addition to further education.
7. The assessors recommended that the practitioner undertake and complete a number of programs before returning to nursing practice and that she be subject to direct supervision for a period and then mentoring.
8. On 28 March 2017 interim conditions were imposed on the practitioner's registration under s 150 of the National Law (ex A1, tab 17) until reviewed by the Council. The conditions included a condition that the practitioner not work as an enrolled nurse, and not check or administer any medication.
9. The practitioner requested a review of the s 150 decision, and s 150C proceedings were held on 6 April 2017 (ex A1, tab 17) where the conditions remained unchanged. The Council committee recommended that the practitioner attend a Performance Review Panel to consider the full report of the Performance Assessment.
10. A Performance Review Panel constituted by the Council conducted a hearing on 14 June 2017 (ex A1, tab 17), and concluded that it had not been demonstrated that the practitioner was practising at, or had the required knowledge at the level expected for a nurse with similar years of experience and training. The panel recommended a number of education courses, and completion of a further performance assessment. Conditions were imposed on the practitioner's registration, including condition 3 which was in the following terms: 3. The registrant must practise under the indirect or direct supervision of a registered nurse (Division 1) who does not have any conditions on his/her practice. The supervisor must be: (a) not directly employed or managed by the registrant; (b) on-site and working in close proximity within a ward or unit with the registrant; and (c) able to oversee and provide advice about the registrant's practice when necessary.
11. There were three further notifications received by the Council, two in May 2017 that the practitioner was working contrary to the condition imposed on 28 March 2017 that she not work as an enrolled nurse until reviewed, and one in June 2017. At a s 150 hearing on 14 July 2017 the practitioner advised that she was not currently practising as a nurse but running her business and overseeing her staff's performance, and had submitted the name of a supervisor. The conditions on her registration remained unchanged.
12. On 20 October 2017 the Council advised the practitioner that it had approved RN A as the practitioner's supervisor "as outlined in your conditions and with the understanding that you will strictly adhere to your supervision plan". The supervision plan provided by the practitioner and RN A (ex A1, tab 7) stated: Full days every Monday and Tuesday in which I can attend her clinics and provide direct supervision On the other days I work morning shift (7.30am-3.30pm), however I can be available to supervise directly after 3.30pm or via phone/video consult.
13. An inspection was conducted under s 164A(2) of the National Law on 12 December 2017 (ex A1, tab 13). The practitioner was recorded as saying to the inspectors that her approved supervisor called in on Mondays and Tuesdays; there was no pre-set arrangement other than that RN A calls and lets the practitioner know when she is coming in. The inspectors recorded that the practitioner had not heard from RN A for the duration of the inspection completed on a Tuesday (9.45am-10.33am). The inspectors called in again at 12.30pm and were told by the receptionist that the approved supervisor had not called to advise when she would be in; she checked with the practitioner who advised that the supervisor "will probably come in after lunch". The inspectors noted that there were no other practitioners present during the inspection.
14. The comments of the inspectors were that the practitioner was working alone; there were no policy documents or information, no formal drug register, prescription chart or documentation about the procurement of drugs. The inspectors could not verify that the approved supervisor had attended at any time since the supervision plan had been approved, and concluded that the practitioner was non-compliant with her supervision conditions.
15. On 25 January 2018 RN A wrote to the Council (tab 9) stating that she was unable to provide a performance report by the due date of 13 January 2018 because between October to January she had barely seen the practitioner for two weeks, and she had advised the practitioner that she could not sign the supervision report as she had never supervised her work, and requested that another supervisor working in the same cosmetic area be assigned.
16. A further s 150 hearing was held on 26 February 2018. The practitioner did not attend, advising the Council that she had had cosmetic surgery some days before. The practitioner provided a letter to the panel (ex A1, tab 18), in which she stated that her lawyers had explained that "direct" and "indirect" meant "onsite" and "offsite"; and that in January 2018 she was made aware she required a supervisor on site. The practitioner listed the steps she had taken, including completing education courses, and hiring a full time RN, and stated that her breach of the supervision condition was inadvertent.
17. The delegates noted that the practitioner had advised that she had misunderstood the conditions and was unaware that she required on site supervision. The delegates noted that the practitioner had attended a counselling session, three s 150 hearings and a Performance Review Panel, and on each occasion had assured decision makers she would make changes to her practice to adhere to her conditions and the standards of practice of enrolled nurses; there was no evidence that she had implemented the changes. The delegates suspended the practitioner's registration. The practitioner was advised by telephone and by letter that she was to cease practising immediately (ex A1, tab 14).
18. In May 2018 the practitioner sought a review of the suspension of her registration under s 150A of the National Law. A further inspection of her premises was conducted under s 164A(2) of the National Law on 29 May 2018 (ex A1, tab 20). The inspectors were informed by the receptionist that the practitioner was currently seeing a client. The receptionist left the reception area to inform the practitioner of the arrival of the inspectors, and informed them that the practitioner had left the building and would return for the next appointment at 12.30pm. The inspectors went into the practitioner's consulting room, and while they were inspecting the room the practitioner returned through the back door. The inspectors asked for the patient records for the client she had seen earlier, and the practitioner said she had not seen any clients that day and did not see any clients except for follow up appointments. The inspectors asked the practitioner to produce a printout from the appointments diary for the previous and current weeks, copies of patient records from the previous and current weeks and copies of patient records for the patients seen and to be seen that day. The practitioner refused and said if the inspectors wanted records they should request them by email and make an appointment. The inspectors requested a copy of the diary printout for that day. The practitioner provided a printout for the previous day which indicated that there were two other persons on-site. The inspectors sighted Radiance Cosmetics business cards which were displayed on the reception desk which contained the name "Tanya" and under that name "Cosmetic Nurse".
19. The hearing of the review under s 150A of the National Law was conducted on 7 June 2018. During that hearing (ex A1, tab 21) the practitioner stated that the supervision provided by RN A was both indirect and direct and consisted of "ongoing conversations over the phone and she came to the practice a couple of times" (Transcript p2). The practitioner stated it was less than five times, and said that RN A spent "a couple of hours" with her, and once spent half a day (Transcript p 3). The decision to suspend the practitioner's registration was affirmed on 6 July 2018.
20. The practitioner appealed to the Tribunal under s 159 of the National Law against the suspension of her registration. In a decision published on 7 November 2018 the practitioner's appeal to the Tribunal (differently constituted) was dismissed: Bechara v Nursing and Midwifery Council of New South Wales [2018] NSWCATOD 181. The Tribunal considered the practitioner's understanding of and compliance with the supervision condition on her registration, commenting that compliance with practice conditions is an essential requirement of registration as a health practitioner. The Tribunal also considered the practice condition imposed on the practitioner's registration requiring her to complete a number of educational courses selected to assist her in overcoming deficiencies identified in the course of performance assessments, and concluded that with one minor exception she had failed to complete those courses. The Tribunal concluded that it was appropriate that the practitioner's registration be suspended pending the outcome of the complaints against her that were at that time being considered, commenting: 70. It is obviously in the public interest that registered health practitioners comply with conditions validly imposed upon their registration, and that they be in a position to practice their profession in a competent and safe manner. A failure to be able to do so justifies suspension of registration pending such improvements as are necessary to comply with such conditions and to put the health practitioner in a position in which he or she is able to practice competently and safely. 71. In addition, the appellant's poor appraisal at her initial performance assessment, and her failure to totally satisfy the assessors at the subsequent assessment is indicative that she presents as a person who potentially may pose a risk to the health and safety of her clients and future clients.
21. As noted in the Tribunal reasons at [73], the operation of beauty salons in which treatment occurs using injectable substances is unregulated, at least in New South Wales, and there is no regulation of who may administer an injection. The Tribunal in those proceedings commented that it regarded it as essential that such treatment be given in a sterile environment with procedures and equipment on hand to deal with emergencies such as anaphylaxis. The Tribunal notes that in those proceedings under s 159 of the National Law, and in the several disciplinary interventions of the Council from 2016 to 2018, the practitioner's conduct has been considered in the context of the application of skills and knowledge of an enrolled nurse.

HCCC's evidence

1. The HCCC relied on a bundle of documents (ex A1) which includes: 1. Statement by Registered Nurse B (RN B) (18 December 2019), and transcript of interview with Registered Nurse A (RN A) (7 June 2018); 2. Statements by two patients; 3. Documents from the previous disciplinary proceedings: 1. Counselling Interview report 7 September 2016; 2. Inspection Report 7 March 2017; 3. Performance Assessment Report 24 March 2017; 4. s 150 proceedings 28 March 2017; 5. s 150C proceedings on 6 April 2017; 6. Performance Review report 14 June 2017; 7. s 150 proceedings 14 July 2017; 8. Inspection report 12 December 2017; 9. s 150 proceedings 26 February 2018; 10. Inspection Report 29 May 2018; 11. s 150A proceedings 7 June 2018 (transcript); 1. Affidavit of Alison Tankard (17 August 2018) as to her inspections of the practitioner's clinic on 7 March 2017, 12 December 2017, and 29 May 2018; 2. Documents provided by practitioner: 1. Letter to Council 26 February 2018; 2. Letter in support of s 150A review 21 May 2018; 3. Affidavit sworn 2 August 2018.
2. In her statement dated 18 December 2019 RN B states that she was employed by the practitioner from early May 2018 to 8 August 2018 as a Registered Nurse (RN). The practitioner introduced herself as a RN. For the first two weeks RN B followed the practitioner, who showed her way of injecting and what her client preferences were. The practitioner continued to see and treat patients for the duration of time she worked for her. She found out later, around mid July 2018, that the practitioner was an EN and that her registration had been suspended, after receiving an email from Dr Ho. The clinic was solely dedicated to performing injectables and so every patient would need to be seen by a RN.
3. RN A was interviewed on 7 June 2018 by an officer of the HCCC (Transcript, ex A1, tab 5). She confirmed her signature on the supervision plan provided to AHPRA, and stated that she had received the approval letter, however had not opened it until November 2017. She had not seen a copy of Condition 3. RN A stated that she had never worked with the practitioner, and she had not supervised the practitioner, she had never been to the clinic, and did not know the address.
4. Statements by two patients are in evidence. The patient identified for the purposes of these proceedings as Patient A, whose statement is at tab 4 of Ex A1, attended the clinic on 27 May 2017, and requested lip filler and Botox in the forehead. She mentioned she was flying to the USA on 1 June, and was not told she should not fly for 10 days after the procedure. She continued to see the practitioner on a three monthly basis for cosmetic facial treatments. She was treated by the practitioner on 3 November 2018 with lip filler and Botox, and on that occasion the practitioner was training another nurse. On 2 February 2019 she was treated by the nurse who was training on 3 November 2018; she saw the practitioner was treating another client in another room.
5. The patient identified for the purpose of these proceedings as Patient B, whose statement is at tab 9A, stated that her first visit to the practitioner was on 18 January 2018, when she was treated with Botox and lip filler injections. There were complications and on 2 February 2018 she returned to have the lumps in her lips massaged out. She had a further two appointments, on 23 February 2018 and 26 October 2018.

Practitioner's evidence

1. The practitioner relied on a written statement dated 24 April 2020, and character references. The practitioner gave oral evidence.
2. In her written statement the practitioner stated that during the relevant period she was a single mother working long hours to maintain the household and raise her child. Her father suffered a heart attack in 2018 and required surgery, and in the weeks that followed she was required to attend to his care, and that caused her substantial anxiety and stress. Her ability to make decisions at that time may have been affected, and at the time she exercised poor judgment. In August 2018 she had a miscarriage which had an emotional toll on her. Towards the end of 2018 she was pregnant and had complications which meant she was unable to perform her usual daily activities.
3. The practitioner stated that during the period of her suspension registered nurses were employed to attend to patients and take over her position while she was co-operating with the Board. She stated that she had the misconceived view that intermittently attending to patients at their request was acceptable, and she now appreciates the health risks associated with her conduct. She had access to health care professionals at the time but did not engage them, and deeply regrets her actions in that respect.
4. She sold the business on 21 February 2019. It did not occur to her that her business cards remained at reception, and that was inadvertent.
5. The practitioner stated that she recognises that her actions have fallen well short of acceptable behaviour from a health care professional. She is extremely remorseful for her actions, and accepts that she put patient's welfare at risk. She now fully appreciates the seriousness of failing to comply with the conditions imposed on her registration.
6. The practitioner is currently enrolled in the Bachelor of Nursing degree course. In her statement she said that she looks forward to renewing her knowledge and skills in the industry. She will be completing a hospital placement under supervision throughout the two year program.
7. In oral evidence the practitioner confirmed that she was aware of the condition on her registration requiring supervision, and accepted that it said the supervisor had to be on site, and that RN A never saw her work. She told the Tribunal that RN A had not been to the practice, she called her a lot. RN A had made excuses, and then she looked for another RN to replace her. The practitioner maintained that RN A supervised her indirectly, but not on the premises, and perhaps RN A contacted the Council when she told her she was going to replace her as supervisor. The practitioner said that she understood that the requirement for a supervisor was because she had failed the performance assessment, and the condition was imposed for public safety. The practitioner agreed that she had told the Council delegates in June 2018 that RN A had watched her working, knowing that she had not been supervised and that RN A had never seen her work.
8. The practitioner confirmed that she received the telephone call on 26 February 2018 to advise that her registration had been suspended, and that she continued to treat clients after that date. She continued to practice after her registration was suspended so she could keep her business open; she was in the clinic and treating patients, and accepted that she had disobeyed the order that she not work as an enrolled nurse. The practitioner agreed that it was not true when she told the delegates at the s 150 hearing on 14 July 2017 that she was not then currently practising as a nurse, because she was at that time treating clients.
9. The practitioner was asked about the inspection on 29 May 2018. She denied having refused to provide the inspectors with the documents requested, stating that she did provide the appointment diary, and it was the receptionist who printed out the diary for the previous day. Later in her oral evidence the practitioner stated that she could not recall refusing to provide the information; the inspectors accepted the document.
10. The practitioner stated that she had been at the clinic daily while it was open. She knew the business cards were there, and was waiting for new cards to be made; she agreed that she had had an opportunity to ensure the cards were not representing to patients that she was a nurse while she was suspended.
11. The practitioner agreed that she had told RN B she was a registered nurse.
12. In oral evidence the practitioner said that she was given credit for one year of her nursing degree as an enrolled nurse. She provided her EN registration number on enrolment. The practitioner expressed confidence that she would comply with regulatory requirements in future, stating that having a baby has made her realise she has made stupid mistakes. She wants to be a registered nurse so she can be a better person and provide better care for her patients. She accepts she did not make good decisions, and put the public at risk.
13. The practitioner provided five character references. Three are from friends who attest to her caring and trustworthy nature, one of which refers to the proceedings brought by the HCCC without indicating knowledge of the complaints. A reference by Nawaar Mouhajer, RN, states that she is a friend, and that the practitioner had assisted her by organising training for her. A reference by Dr John Holbrook states that he is aware of the matter before the Tribunal and that he has worked with the practitioner in her capacity as clinic owner and worked with the registered nurses working at the clinic. He states that the practitioner has always been willing to abide by relevant regulations and laws applying to clinical practice involving cosmetic injectables. He would be surprised by any future actions by her not in line with having learned from past actions.

Consideration

1. The practitioner has admitted the underlying conduct particularised in Complaints One and Two.
2. The Tribunal is satisfied that the evidence establishes that the practitioner breached Condition 3 imposed on her registration by practising without the on-site supervision of a registered nurse.
3. Condition 3 was imposed on the practitioner's registration on 14 June 2017. RN A was approved as the practitioner's supervisor on 23 October 2017. On 25 January 2018 RN A informed the Council that she had never supervised the practitioner's work, and in the interview of 7 June 2018 (ex A1, tab 5) RN A confirmed that she had never supervised the practitioner or seen her work, and had never been to the clinic.
4. The Tribunal is satisfied that the evidence establishes that the practitioner provided false information to the Council delegates hearing proceedings under s 150 of the National Law on 7 June 2018 when she stated that: 1. "Yes, I had [RN A] supervising me from October 2017 to January 2018"; 2. "Ongoing conversations over the phone and she came to the practice a couple of times"; 3. "probably less than five times"; and 4. "A couple of hours. Once she spent half a day".
5. The transcript of the s 150 hearing of 7 June 2018 (ex A1, tab 21) confirms that the practitioner provided the responses quoted in particular 1 of Complaint Two in response to direct questions from the delegates, and further, in response to a question as to what RN A did, stated that she "watched, asked why - questions on the procedures, was interested in what I was doing as well cause she works in a hospital so she doesn't work in the cosmetic industry". Particular 1 of Complaint Two is established.
6. The practitioner's registration was suspended on 26 February 2018. The Tribunal is satisfied that the evidence establishes that the practitioner provided treatment to clients by performing cosmetic injections during the period after her registration was suspended. Patient A was treated by her on 3 November 2018, and she saw the practitioner at the clinic with another client on 2 February 2019. Patient B was treated on 26 October 2018. The evidence of RN B confirms that during the period of her employment, from May to August 2018, the practitioner continued to see and treat patients. Particular 2 of Complaint Two is established.
7. The photographs annexed to the report of the inspection undertaken on 29 May 2018 (ex A1, tab 20) confirm that business cards for Radiance Cosmetics with the words "Tanya Cosmetic Nurse" were located on the reception desk. The Tribunal is satisfied that as at that date, which was after her registration was suspended, and several months before the business was sold, the practitioner was holding herself out as being entitled to practice as an enrolled nurse. Particular 3 of Complaint Two is established.
8. The Tribunal is satisfied based on the evidence of RN B that the practitioner held herself out as a registered nurse during the period of her employment, from the beginning of May 2018, and that RN B only became aware the practitioner was not a registered nurse in mid July 2018. Particular 4 of Complaint Two is established.
9. The HCCC contends that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(c)(i) of the National Law in relation to the conduct in Complaint One, and under s 139B(1)(l) of the National Law in relation to the conduct in Complaint Two. Those provisions are: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - … (c) Contravention of conditions of registration or undertaking A contravention by the practitioner (whether by act or omission) of - (i) a condition to which the practitioner's registration is subject; or (ii) an undertaking given to a National Board. … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
10. The practitioner contravened Condition 3 imposed on her registration on 14 June 2017. She is guilty of unsatisfactory professional conduct as defined in s 139B(1)(c)(i) of the National Law as alleged in Complaint One.
11. Complaint Two requires consideration of whether the practitioner's conduct as particularised can be characterised as "improper" or "unethical". In Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 the Tribunal considered s 139B(1)(l), and confirmed at [31] that it applies to conduct not falling within s 139B(1)(a)-(k). The Tribunal considered the terms "improper" and "unethical": 41. "Improper" and "unethical" are not defined in the National Law and should be given their ordinary meaning. The word "improper" means, relevantly, "not proper," and "not in accordance with propriety of behaviour, manners, etc.: improper conduct" (Macquarie Dictionary Online; see also Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [51]). "Unethical" means, relevantly, "contrary to moral precept; immoral" or "in contravention of some code of professional conduct" (Macquarie Dictionary Online; see also Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [52]). In this disciplinary context, impropriety may refer to a breach of the standards of conduct that would be expected of a person in the position of the respondent (see Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54]).
12. The practitioner has admitted that she provided false information concerning her supervision to the delegates at the s 150 hearing on 7 June 2018. She had a duty to be honest and candid with the regulatory bodies, as an integral part of the proper functioning of the regulatory system. Her conduct in providing false information to the Council delegates was both improper and unethical: Health Care Complaints Commission v Hanna [2018] NSWCATOD 113 at [104]; Health Care Complaints Commission v Shrimpton [2019] NSWCATOD 25 at [73].
13. The practitioner has admitted that she continued to treat clients after her registration was suspended on 26 February 2018. The Tribunal is satisfied that the practitioner was aware that her registration was suspended, having been told by telephone on 26 February 2018 of the decision, and that she was to cease practising immediately. The Tribunal is satisfied that the practitioner attempted to conceal the fact that she was continuing to treat patients, in her response to the request for documents at the inspection on 29 May 2018. Her statement to the delegates at the s 150 hearing on 7 June 2018 that the inspectors had asked for a copy of the day before was not supported by either the record of the inspection, or Ms Tankard's affidavit of 17 August 2018. Her response in cross examination at the Tribunal hearing to the proposition that she had not provided the daily appointment diary because it would show that she was treating clients was to shift responsibility to the inspectors, stating that they had accepted the document they took on the day.
14. In addition to continuing to treat patients notwithstanding that her registration had been suspended, the practitioner continued to hold herself out to patients that she was a registered health practitioner, by using business cards in May 2018 stating that she was a "cosmetic nurse".
15. That conduct was in breach of her obligations to comply with the requirements of the National Law, and more fundamentally, to ensure that safe and quality care was provided to her patients, and was both improper and unethical. The practitioner put her business interests over her obligations as a health practitioner.
16. The practitioner held herself out to be a registered nurse. She had been made aware at the counselling interview on 7 September 2016 that she was not permitted to use that title, and confirmed at that time that she understood her practice to be as an enrolled nurse. In holding herself out to be a registered nurse in 2018, the practitioner failed to comply with her obligations under cl 4.2 of the Nursing and Midwifery Board of Australia Code of Conduct to be honest and transparent when describing her education, qualifications, and registration status. Her conduct in doing so was unethical.
17. The Tribunal is satisfied that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law as alleged in Compliant Two.
18. Complaint Three is that the practitioner is guilty of professional misconduct, defined in s 139E of the National Law: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means - (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
19. As explained by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [19], the term "professional misconduct" does not have a specific meaning, and it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation. At [20] his Honour continued: There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1).
20. The Tribunal notes that the gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264.
21. The Tribunal is satisfied that the practitioner's conduct in continuing to treat patients in her clinic after her registration was suspended, and in providing false information to the Council delegates at the s150 hearing on 7 June 2018 as to the supervision arrangements, was conduct of a sufficiently serious nature to justify suspension or cancellation of her registration. That conduct could not be described as an inadvertent or careless lapse, but was deliberate, and put her business interests ahead of the safety and care of her patients. The conduct continued notwithstanding the several interventions by the Council to supervise her practice and assist the practitioner to improve, and to ensure the protection of the health and safety of her patients. The practitioner has identified in her statement of 24 April 2020 that there were extenuating circumstances to explain her behaviour, however those circumstances occurred in the period from late 2018, and do not explain her behaviour in breaching the conditions of her registration in 2017. The practitioner's conduct in persistently and deliberately breaching the conditions on her registration and making false representations to the Council was conduct which, in the terms used by Basten JA in Chen, revealed a fundamental defect of character.
22. The practitioner is guilty of professional misconduct as alleged in Complaint Three.

Protective Orders

1. The practitioner has admitted, and the Tribunal has found, that the subject matter of the complaint is proved. The Tribunal has found that the practitioner is guilty of unsatisfactory professional conduct, and professional misconduct. The Tribunal's powers to make orders are specified in s 149A of the National Law, and, as a consequence of the finding that the practitioner is guilty of professional misconduct, includes under s 149C(1)(b) the power to cancel her registration, to make an order under s 149C(7) to impose a non-review period, and to make a prohibition order under s 149C(5).
2. The HCCC submits that the appropriate protective orders are cancellation of the practitioner's registration with a non-review period of 18 months, and a prohibition order. The practitioner made no submission in opposition to an order cancelling her registration, or an order for costs. In relation to the proposed prohibition order, the practitioner submitted that there may be an issue with her ability to continue to complete course requirements for the nursing degree.
3. The Tribunal is required in the exercise of functions under the National Law to have regard to the objectives and guiding principles of the national registration and accreditation scheme set out in s 3. The most directly relevant of those principles is that in s 3(2)(a), to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered. The protection of the health and safety of the public must be the paramount consideration: s 3A.
4. The finding of professional misconduct does not mean that an order under s 149C(4) must be made. The power to make any of the orders specified in s 149C is protective rather than punitive: Lee v Health Care Complaints Commission [2012] NSWCA 80.
5. In Health Care Complaints Commission v Do [2014] NSWCA 307 the Court of Appeal said: 35. The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
6. The HCCC submits that cancellation of registration is appropriate. The practitioner's conduct was not an aberration of character, but a course of ongoing dishonesty in the context of complaints as to how she practised. Not only was the practitioner treating patients while she was suspended, she was training others. There was a deliberate disregard for the conditions imposed on her registration, and the Tribunal could not be confident that she would comply with conditions in future. If able to provide health services while her registration is cancelled, there is a risk that the practitioner would dishonestly conduct herself, conceal errors and not be candid. That would undermine the deterrent message, and prioritise the practitioner's private interests at the risk of the health and safety of the public. There is no clear evidence of a reformation of character, and accordingly the Tribunal cannot be satisfied that the practitioner could safely practise in any kind of practice context. The HCCC submits that there would be a conflicting public message if the practitioner's registration is cancelled and she is able to practise as a student nurse.
7. The practitioner submits that she has gained insight into the shortcomings in her practice, and that in her evidence to the Tribunal she has acknowledged the potential impacts of her conduct on public safety. She has acknowledged that she provided misleading and false information to the Council delegates. She acknowledges that she has in the past put her financial interests above her obligations to her patients and the profession, and she intends not going back into running a business. The practitioner has acknowledged that her past conduct was stupid. She is currently enrolled in an educational course, and continuation of her education is essential to demonstrating her rehabilitation.
8. An issue at the hearing was whether cancellation of the practitioner's registration, as sought by the HCCC, would affect the practitioner's ability to continue and complete the nursing degree.
9. After the hearing the practitioner requested clarification from the university concerning the practical component of the degree course, whether registration with AHPRA is required to complete the practical component, and whether cancellation or continuation of the suspension of registration would affect the practitioner's ability to complete the practical component of the course.
10. The university advised that there is a workplace learning component in each session of the course. All students require supervision by a registered nurse in a variety of settings. All students are registered with AHPRA with student registration. In the course the practitioner is undertaking learning as a student registered nurse and is to work in this scope of practice, which is regardless of her current status as an enrolled nurse. The workplace learning component could be deferred for a maximum of 24 months.
11. Based on the advice from the university, it is apparent that the disciplinary proceedings against the practitioner, and the outcome if her registration as an enrolled nurse is cancelled or suspended, do not affect her ability to complete the nursing degree. The Tribunal is satisfied that she would be able to complete the workplace learning component as a student registered nurse, regardless of her status as an enrolled nurse.
12. The Tribunal considers that the following factors are relevant in determining what protective orders are warranted: 1. The practitioner's conduct involved breaches of her obligation to comply with conditions imposed on her registration in response to an unsatisfactory performance assessment, in the interests of protection of public health and safety, and her obligation to cease practising after her registration was suspended for failing to comply with those conditions; 2. The practitioner provided false and misleading information to the Council delegates in proceedings under s 150 of the National Law in circumstances where their duty was to consider appropriate steps for the protection of the health or safety of persons, and the public interest; 3. The practitioner has had several opportunities to understand the shortcomings in her professional practice, beginning with the counselling interview on 7 September 2016, the workplace inspections in 2017, the performance assessments in 2017 and 2018, and the hearings convened under ss 150 and 150C of the National Law; and 4. Despite the opportunities provided by the disciplinary interventions during 2016, 2017 and 2018, the practitioner has failed to address the fundamental shortcomings in her practice and approach to her professional obligations.
13. The practitioner's evidence to the Tribunal that she thought RN A was indirectly supervising her is not consistent with the terms of Condition 3, which refer expressly to the supervisor being "on-site and working in close proximity", or with the practitioner's letter of 26 February 2018 that she was aware in January 2018 that she needed a supervisor on-site, or with the detailed discussion of that issue at the s 150 hearing on 7 June 2018.
14. While Condition 3 specified that the supervisor had to be "on-site and working in close proximity", the supervision plan provided by the practitioner and RN A in September 2017 was clear that it was only on Monday and Tuesday that RN A could attend the clinic in person. It is not surprising therefore that the practitioner may have misunderstood by the approval of that supervision plan what was required for her to practise "under the direct or indirect supervision" of a registered nurse. The Standards for Practice: Enrolled Nurses (ex A1, tab 17) defines the terms "direct supervision" to mean when a supervisor is present and observes the person who is being supervised, and "indirect supervision" to mean when the supervisor works in the same facility or organisation by does not constantly observe their activities. While the term "indirect or direct supervision" used in condition 3 may have been ambiguous, the requirement was clarified for the practitioner, on her evidence at least in January 2018. In continuing through her oral evidence to the Tribunal to maintain that she was confused about the requirements of the condition was, at the least, disingenuous, and inconsistent with the obligation on a registered health practitioner to ensure that she understood and complied with all her obligations.
15. The practitioner had an opportunity through the counselling interview in September 2016, and through the reports of the inspections and performance assessments undertaken since then to understand the requirements of her continued registration as a health practitioner. The practitioner held herself out to be a registered nurse in 2018, despite having been advised in the counselling interview in June 2017 as to requirements for the use of protected titles.
16. The practitioner in her written statement of 24 April 2020 explained the personal issues in 2018 that caused her anxiety and stress, however, the issues with her practice occurred before then, as demonstrated by the complaints that led to the counselling interview and her non-compliance with the supervision condition imposed in March 2017.
17. The practitioner's conduct represented an ongoing course of conduct in disregard of her professional obligations, and continued notwithstanding the numerous regulatory interventions. The Tribunal has no confidence that the practitioner would comply with any conditions imposed on her registration. While in his character reference Dr Holbrook stated that the practitioner has always been willing to abide by relevant regulations, that is not borne out by the record of disciplinary sanctions and interventions in evidence before the Tribunal. The Tribunal is satisfied that in the interests of protecting the public from the apprehended harm that might be caused should she remain in practice, and the general deterrence and maintenance of public confidence in the profession, the order sought by the HCCC for cancellation of the practitioner's registration should be made.
18. The practitioner maintained in oral evidence that she acknowledges she has made mistakes and is confident she will comply in future. However, having regard to her evasive responses to questions concerning the printing of the daily appointment diary, and to her understanding of the supervision condition, the Tribunal has reservations as to the genuineness of her reflection or insight. The Tribunal agrees with the HCCC that the practitioner should be precluded from applying for re-registration for a period of 18 months. The setting of that minimum period within which she should not be able to practise her profession sends a message to her, to the profession, and to the public, about the seriousness of her conduct. It also holds open to the practitioner the possibility that she may, with demonstrated rehabilitation and reformation, be able to return to the profession at some time: Chen v Health Care Complaints Commission [2017] NSWCA 186.
19. The HCCC also seeks an order under s 149C(5) of the National Law, which provides: (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a prohibition order) do any one or more of the following - (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; (b) place specified conditions on the provision of health services or specified health services by the person for the period specified in the order or permanently. Note. Section 102(3) of the Public Health Act 2010 provides that it is an offence for a person to provide a health service in contravention of a prohibition order.
20. The term "health services" is defined in s 5: health service includes the following services, whether provided as public or private services - (a) services provided by registered health practitioners; (b) hospital services; (c) mental health services; (d) pharmaceutical services; (e) ambulance services; (f) community health services; (g) health education services; (h) welfare services necessary to implement any services referred to in paragraphs (a) to (g); (i) services provided by dietitians, masseurs, naturopaths, social workers, speech pathologists, audiologists or audiometrists; (j) pathology services.
21. The Tribunal must be satisfied that the practitioner poses "a substantial risk to the health of members of the public". That is a risk that is material, and real or apparent on the evidence, and not a risk that is without substance or speculative: Health Care Complaints Commission v Brush [2015] NSWCATOD 120 at [96]; Health Care Complaints Commission v Choi [2017] NSWCATOD 82 at [75].
22. The HCCC submits that an order should be made prohibiting the practitioner from providing health services including providing cosmetic injections, undertaking nursing placements in hospitals, day procedure clinics and aged care facilities as part of a nursing degree, or working as an Assistant in Nursing unless and until such time as she is registered as a Registered Nurse.
23. The HCCC submits that the risk the practitioner poses is a risk of dishonestly conducting herself as a nurse and concealing that dishonesty to avoid detection by patients, their families, and the regulators. That risk to members of the public is real and material, there have been previous complaints about the respondent's treatment and there are issues with her candour. A prohibition order would ensure that the protective purpose of the cancellation of registration is not significantly undermined.
24. The practitioner is not opposed to a prohibition order as such, acknowledging some concern, however would not want any such order to prevent the further advancement of her education, which is part of any rehabilitation. No orders should be made that would prevent completion of the educational course.
25. The Tribunal agrees with the HCCC that it is both the shortcomings in her practice, demonstrated in the reports of the inspections of 7 March 2017, 12 December 2017, and 29 May 2018, and the performance assessment of 24 March 2017, and in her lack of candour, that demonstrate that the practitioner poses a material risk to the health of members of the public. The Tribunal is not confident that the practitioner could be relied upon not to mislead patients and clients by dishonestly claiming to be a registered health practitioner if she continues to work providing cosmetic treatments or in other health services. The Tribunal agrees with the practitioner that completion of the nursing degree would assist in the rehabilitative steps that she would be required to demonstrate to seek a reinstatement order under s 163B of the National Law that would permit her to apply for re-registration. Having regard to the advice received from the practitioner's university that she is undertaking learning as a student registered nurse and is to work in this scope of practice under supervision by a registered nurse in a variety of settings, the Tribunal considers that any prohibition order should be framed so as not to prohibit her continuing her education.

Costs

1. The HCCC seeks an order that the practitioner pay its costs of the proceedings. Clause 13 of Sch 5D of the National Law enables the Tribunal to make an order for payment of costs. The relevant principles applicable to the costs of the proceedings were summarised by the Court of Appeal in Qasim v Health Care Complaints Commission [2015] NSWCA 282, and are that ordinarily costs should follow the event unless there are reasons to conclude otherwise. There is no disentitling conduct as on the part of the HCCC in its conduct of the proceedings, and the practitioner does not oppose an order that she pay its costs. It is appropriate to order that the practitioner pay the costs of the HCCC.

Orders

1. The orders of the Tribunal are: 1. The Respondent is guilty of unsatisfactory professional conduct and professional misconduct; 2. Pursuant to a finding of professional misconduct, the Respondent's registration as an enrolled nurse is cancelled under s 149C(1)(b) of the Health Practitioner Regulation National Law from the date of this decision; 3. Pursuant to s 149C(7) of the Health Practitioner Regulation National Law, the Respondent is not to make any application for review of the cancellation of her registration for a period of 18 months from the date of this decision; 4. Pursuant to s 149C(5) of the Health Practitioner Regulation National Law, the Respondent is prohibited from providing health services as defined in s 4 of the Health Care Complaints Act 1993, including offering cosmetic or other forms of injectable treatments, other than as authorised by and in accordance with the requirements of her registration as a student nurse undertaking the Bachelor of Nursing course, for the period until she obtains a reinstatement order under Div 8 of Part of the Health Practitioner Regulation National Law (NSW) or its equivalent, or is re-registered as a nurse; and 5. The Respondent is to pay the costs of the Health Care Complaints Commission, as agreed or assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 December 2020